Thursday, April 24, 2014

Cohan: Fact & Fiction

In his C-SPAN interview, William D. Cohan described himself
as a “serious investigative journalist.” Yet despite a tendency in his book to
operate mostly by inference and insinuation, Cohan has made a number of factual errors, each of which he has left uncorrected. Moreover, several of these errors resulted from Cohans

’s unwillingness to reach out to the target of his (or book protagonist Mike Nifong’s) criticism.

1.) Citing Mike Nifong, Cohan reported that senior
prosecutors in the attorney general’s office were “blindsided” when Roy Cooper
publicly declared the falsely accused students innocent. Cohan allowed the
claim to stand unrebutted, and did not contact either Jim Coman or Mary Winstead
for comment.

In fact, the senior prosecutors in the AG’s office weren’t
surprised at all, since they believed that the falsely accused players were
innocent. In an interview with the N&O,
reported a few days before the book was published, Jim
Coman suggested that Cohan’s claim resulted from “figments of [Nifong’s]
imagination.”

Coman said all the physical evidence pointed to innocence – DNA tests; cellphone records of the players and Mangum; photographs and videos; and receipts from a gas station, restaurants and debit cards. One player, whom Coman dubbed “Ansel Adams,” photographed and videoed much of the evening.

“I was just adamant,” Coman said. “She lied, she made up a story, and damn it, we’ve got to do the right and ethical thing.”]

This cannot in any way be construed as the statement of a man who was blindsided by a declaration of innocence.

Cohan has never acknowledged the error. Indeed, almost
incredibly, in a recent C-SPAN appearance, he slightly modified the story to
leave listeners with the false impression that what he wrote in the book was
true.

2.) In both Cohan’s press appearances and in Scribner’s
publicity material, the
claim was made that Cohan was the first journalist to access and
report on the report of former SANE-nurse-in-training Tara Levicy.

In fact, multiple reporters, with differing takes on the
case (N&O, 60 Minutes, New York
Times, UPI), had seen and reported on the Levicy document, years ago/

Cohan has never acknowledged the error, but in his most
recent press appearances, he has ceased to make it.

3.) In interviews with Bloomberg TV and MSNBC, Cohan
asserted that Bob Steel had joined Mike Nifong and Crystal Mangum in a
“consensus” about what occurred—that “something happened in that bathroom that
none of us would be proud of.”

Cohan has never acknowledged the error, but in his most
recent press appearances, he has ceased to make it.

4.) On p. 439, Nifong asserted that the Seligmanns had (with
the knowledge of Jim Cooney) failed to pay their legal bills to Kirk Osborn and
Buddy Conner. Cohan allowed the claim to stand unrebutted, and did not contact
Jim Cooney or Philip Seligmann (who paid the bills in 2006) for comment.

5.) Expanding on assertions he made in the book (that the
DNA issue was a “red herring” and involved evidence that “didn’t matter”),
Cohan told NPR’s Diane Rehm that Nifong had not behaved unethically in failing to produce a report that listed any DNA test results done in the case. Rather, according
to Cohan, Nifong had merely refrained from putting “a bow” on the evidence, or from making it “easy” for the defense.

In fact, two separate provisions of North Carolina law
required Nifong to turn over to the defense reports containing the results of
“any” tests lab director Brian Meehan conducted.

Cohan has never acknowledged the error, although in his most
recent extended appearance (an hour on C-SPAN) he didn’t talk once about Nifong’s
improper handling of the DNA evidence, leaving listeners with the impression
that the ethics case against Nifong rested solely on his improper public
statements.

6.) On p. 559, Cohan quoted Nifong saying
that “at least part of Lane Williamson’s sentencing memo was done the night
before I testified. At least part of that had been written. I could’ve said
anything.” Cohan allowed the claim to stand unrebutted, and did not contact
Williamson for comment.

In fact, Williamson
commented to this blog, “I did not
prejudge Mike Nifong: rather, I evaluated the evidence presented at the hearing
to reach my conclusions. I wrote no part of my concluding remarks prior to the
end of the hearing: those were extemporaneous except for a few notes that I
made during the panel’s deliberation following closing arguments on the
punishment phase of the hearing.”

Cohan has never acknowledged the error.

The book contains two more significant claims of this type—claims
by the credulity-impaired Nifong about the actions or thoughts of people who countered
Nifong, which Cohan in turn made no attempt to verify.
Nifong-through-Cohan asserted that the Bar planned to call Dave Evans rather than
Reade Seligmann to testify, but then changed its mind because of an alleged
focus group. Nifong-through-Cohan asserted that Judge Smith not only pre-judged
his case, but told someone that he planned to sentence Nifong to 30 days.

To date, neither the Bar prosecutors nor Judge Smith have
commented. [Update, 1.08pm: It’s my understanding, however, that Cohan did not request an interview from either Doug Brocker or Katherine Jean, the two State Bar prosecutors.] But there’s no reason to credit these Nifong/Cohan
assertions any more than the other six incorrect claims. Nifong had no credibility when Cohan
started his project, and he has no credibility now. And yet to Cohan, he’s “quite
credible” and an “honorable” man, to such an extent that his word provides the
argument for Cohan’s book.

--------------------------

Two other items, dealing mostly with Cohan’s public remarks,
touch on the issue of Cohan’s frayed credibility. The first is his claim (mentioned in virtually every one of his public appearances)
that the total settlement with the falsely accused former students was $60
million, and that the total cost of the affair to Duke was at least $100
million. In the book (p. 568), he cites the first of these figures to “the consensus around Duke and Durham.”

The settlement’s provisions, of course, have never been made
public. But there are three oddities to Cohan’s claims.

First, the well-connected Bernie Reeves reported that the total was around a third
of Cohan’s. Maybe Reeves is wrong and Cohan is right (I have no reason to
believe this is the case), but it’s striking that Cohan doesn’t even mention
Reeves’ scoop anywhere in the book.

Second, I’m not aware of any substantiation for Cohan’s
claim (first made in an interview with the Daily
News, oft-repeated since) of a $100 million cost to Duke, meaning legal
fees of at least $37 million. He gives no indication that he sought to
interview Duke’s attorneys, or that he asked Bob Steel or a Duke spokesperson
to provide even a ballpark figure regarding Duke’s legal fees. As far as I can
determine, Cohan simply created this figure from whole cloth.

Third, Cohan offered a peculiar line in
his C-SPAN interview: his claim of a $60 million total settlement “since has been confirmed to me.” [emphasis
added] The book itself doesn’t mention his receiving any confirmation for the
total, and instead uses the “consensus” line. Is it Cohan’s practice to print
unsourced material first, and then seek confirmation later?

Second: In his C-SPAN interview, Cohan asserted that “thanks to these lawsuits ... , one of which is still
ongoing, there’s been a lot more documentary evidence that’s come to light then
ever existed before.”

This statement isn’t accurate. Discovery
in all of these cases was sealed (because of Durham’s legal tactics, no
discovery in the suit against the city even occurred at the time Cohan was
writing his book). Only five discovery-related e-mails, attached to two
Ekstrand filings, have (to date) surfaced. And, of course, Cohan misrepresented
the major item from those filings to minimize President Brodhead’s
guilt-presuming nature.

It’s true that a serious investigative journalist nonetheless
might have been able to glean material from the various parties’ legal filings,
but there’s no evidence that Cohan did that, either. Indeed, he went out of his
way to ignore relevant material in
the filings.

To take one instance: among the most controversial items of the
case was the DPD’s decision to allow Mike Nifong to assume
personal command of the investigation. (Gottlieb cited the command in his
straight-from-memory report, and all key events after that day were run through
Nifong’s office.) In the book (p. 81), Cohan allowed Nifong to contest the
claim while not denying that he spoke to Capt. Lamb of the DPD. But in a June
2009 filing—exactly the type of item that Cohan had implied to C-SPAN gave his
book freshness—the city of Durham admitted
that Gottlieb’s recollection was correct, though not explaining why Durham had allowed Nifong to take command
of the police inquiry.

Cohan, for reasons that remain unclear, did not mention the
filing in his book.

Mr. Cohan is claiming that he interviewed/spoke to Ryan McFadyen. Is there any evidence or proof that such an interview took place? I find it highly suspect due to any confidentiality agreements and/or pending litigation.

Yes, I believe he did interview McFadyen (he quotes from McFadyen in the book, and I had heard from other sources that McFadyen did the interview).

If the McFadyen case moves forward, Duke's attorneys could legitimately explore the issue of whether, by consenting to an interview with Cohan, McFadyen has come to accept the book's basic approach to the case. These would seem to me perfectly reasonable questions for the Duke lawyers to raise.

I wish that were so, but because Reade, David,and Collin and their parents are "public figures," they would have to prove in court that Cohan's errors were the result of (a) his knowing that his claims at the time were false, or (b) engaging in what the Supreme Court in 1964 (Times v. Sullivan) declared to be "reckless disregard for the truth."

Proving that is very difficult because one cannot necessarily know one's state of mind at the time. Successful libel suits involving public figures are very, very difficult to pursue because the courts are highly protective of the Times v. Sullivan and subsequent rulings that expanded the 1964 ruling.

I wrote part of my doctoral dissertation on these rulings and became quite familiar with them and the politics behind them. By being indicted and by having his photo on Newsweek's cover, Reade became a "public figure," so Cohan would have to prove to the court's satisfaction that he knew Nifong was lying when he claimed the Seligmanns had not paid Kirk Osborne. While Nifong is a proven liar, it still would be difficult to prove that Cohan KNEW Nifong was lying.

Now, I believe that believing anything Nifong says and then publishing it is "reckless disregard for the truth," but I think the courts would be more lenient with Nifong than I would be.

"If the McFadyen case moves forward, Duke's attorneys could legitimately explore the issue of whether, by consenting to an interview with Cohan, McFadyen has come to accept the book's basic approach to the case. These would seem to me perfectly reasonable questions for the Duke lawyers to raise.:

OTOH, it might raise the issue of whether Cohan misled McFadyen as to the nature of the proposed book; ie, whether it was to be an objective look at the case; or an attempt at revisionist history (including a virtual defense of Nifong).

Just to keep everyone informed, Cohan's book has now accumulated FORTY TWO one star reviews. I say again I am gratified that ordinary people do not buy into the line William D, Cohan is trying to sell.

Meanwhile, if Cohan does truly believe what he has written, let him go one on one with Professor Johnson and Stuart Taylor.

Cohan responded to a question from Joe Coscarelli: "The question is, do you believe that all of that was made up and was all a fiction and that nothing even remotely like any of that ever happened? That it was all just made up and everyone was in on the conspiracy? Or that, as I like to say, something happened that none of us would be proud of?" This is a standard response to many people who draw attention to a putative wrongful conviction or accusation, and the nicest thing I can say about the response is that it is intellectually lazy. How does any wrongful conviction happen? Either it is the result of one person's actions or it is the result of many people's actions, and it is not as if conspiracies to commit illegal or immoral acts never happen.

Blog Awards

About Me

I am from Higgins Beach, in Scarborough, Maine, six miles south of Portland. After spending five years as track announcer at Scarborough Downs, I left to study fulltime in graduate school, where my advisor was Akira Iriye. I have a B.A. and Ph.D. from Harvard, and an M.A. from the University of Chicago. At Brooklyn College and the CUNY Graduate Center, I teach classes in 20th century US political, constitutional, and diplomatic history; in 2007-8, I was Fulbright Distinguished Chair for the Humanities at Tel Aviv University.

Book

Comments Policy

(1) Comments are moderated, but with the lightest of touches, to exclude only off-topic comments or obviously racist or similar remarks.

(2) My clearing a comment implies neither that I agree nor that I disagree with the comment. My opinion is expressed in my words and my words only. Since this blog has more than 1500 posts, and since I at least occasionally comment myself, the blog provides more than enough material for readers to discern my opinions.

(3) If a reader finds an offensive comment, I urge the reader to e-mail me; if the comment is offensive, I will gladly delete it.

(4) Commenters who either misrepresent their identity or who engage in obvious troll behavior will not have their comments cleared. Troll-like behavior includes, but is not limited to: repeatedly linking to off-topic sites; repeatedly asking questions that already have been answered; offering unsubstantiated remarks whose sole purpose appears to be inflaming other commenters.

"From the Scottsboro Boys to Clarence Gideon, some of the most memorable legal narratives have been tales of the wrongly accused. Now “Until Proven Innocent,” a new book about the false allegations of rape against three Duke lacrosse players, can join these galvanizing cautionary tales . . , Taylor and Johnson have made a gripping contribution to the literature of the wrongly accused. They remind us of the importance of constitutional checks on prosecutorial abuse. And they emphasize the lesson that Duke callously advised its own students to ignore: if you’re unjustly suspected of any crime, immediately call the best lawyer you can afford."--Jeffrey Rosen, New York Times Book Review